IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

V

THOMAS EREGA MANIORU AND STEPHEN FIUROBO MANIORU

Date of Hearing: 27th, 28th and 29th July; 1st, 2nd, 3rd, 4th,
 5th, 8th, 9th, 11th and 26th August 2011

Date of Judgment: 16th September 2011

Mr. M. Kausimae and Ms. F. Joel for the Crown
Mr. Barlow and Mr. S. Aupai for the 1st accused
Ms. L. McSpedden and Mr. N. Galo for the 2nd accused.

JUDGMENT

Apaniai, PJ:

Introduction

1.	The accuseds, Thomas Erega Manioru ("1st accused") and Stephen Fiurobo Manioru ("2nd accused"), are both charged with the murder of David Maesuri ("deceased") at the Central Market in Honiara on the 15th May 2009. 

2.	It is alleged that the 1st accused stabbed the deceased with a knife on his left ribs during a fight at the Market causing wounds from which the deceased died at Central Hospital, Honiara, at about 11.30 pm later that evening. It is also alleged that in stabbing the deceased, the 1st accused had intended to cause the death of, or grievous harm to, the deceased.

3.	The case against the 2nd accused is not that he stabbed the deceased or directly caused his death, but that he had aided and abetted the 1st accused in murdering the deceased and is liable for the death of the deceased under section 21 of the Penal Code. 

4.	Alternatively, it is alleged against the 2nd accused that he was involved in a "joint enterprise" with the 1st accused in assaulting the deceased and is therefore liable for the death of the deceased pursuant to section 22 of the Penal Code (Cap. 26).

5.	Under sections 21 and 22 of the Penal Code, a person who aids or abets another person to commit an offence, or who is involved in a joint enterprise with another person which results in the commission of an offence, is liable to the same punishment as the person who actually committed the offence, that is, the principal offender, and may be charged as a principal offender in connection with the offence.

Facts not disputed
6.	It is not disputed that a fight occurred between 5pm and 6pm on Friday 15th May 2009 at a bus stop known as the "KGIV bus stop" which is located near the main road at the front of the Market.

7.	It is also not disputed that during the fight, the 1st accused stabbed the deceased on the left side of his ribs and that it was those stab wounds which caused the death of the deceased.

8.	An autopsy report prepared by Dr. Roy Maraka (PW2), who carried out a post mortem on the deceased on the 16th May 2009, showed a number of external wounds on the deceased's body. The first wound was a 20mm long stab wound on the lateral area of the left chest. The second was a 14x6mm and 10mm deep wound located on the lateral area of the left arm. The third was a 10x21mm wound on the mucosal surface of the lower lip. The fourth wound was a 50x1mm laceration on the left chest and the fifth wound was a 11x7mm laceration on the right toe.

9.	The report also stated that the stab wound on the left chest had entered the chest cavity between the 5th and the 6th left ribs and punctured the lower lobe of the left lung, through the pericardium (structure that contains the heart in a cavity), and then through the left side of the heart wall and into the left ventricle (the space in the heart through which blood passes when pumped to the body). The report further said that a 1,350mls of blood was found in the left chest cavity and that blood clots were also found in the pericardial cavity (the space where the heart is located).

10.	The report concluded that the cause of the deceased's death was haemopericardium (blood loss in the pericardial cavity) caused by the stab wound on the left side of the heart. The report also added that the blood loss in the left chest cavity from the stab wound in the left lung had also contributed to the deceased's death. The report further said that these wounds were caused by the use of a sharp object.

11.	The autopsy findings have not been challenged by both accuseds. I accept the findings as true and accurate. I am therefore satisfied beyond reasonable doubt that the deceased died from haemopericardium (i.e., blood loss in the pericardial cavity) which was caused by the stab wound on the left side of the deceased's heart as well as from blood loss caused by a stab wound in the left lung of the deceased. 

12.	I am also satisfied beyond reasonable doubt that these wounds were caused by the 1st accused when he stabbed the deceased on the left side of his ribs between 5 and 6pm on the 15th May 2009.

Defence by the 1st accused.

13.	The 1st accused, however, has raised the defence of intoxication pursuant to section 13 of the Penal Code. He says that he was so intoxicated that he did not know what he was doing and had no intention of causing the death of the deceased.

14.	In legal terms, what he is saying is that, while he does not deny the actus reus of the offence, the necessary mens rea was not present and therefore he could not be guilty of murder under section 200 of the Penal Code.

Defence by the 2nd accused
15.	As for the 2nd accused, he admits being involved in the incident, but denies having assaulted the deceased or having aided or abetted the 1st accused in assaulting the deceased. He says that his involvement was simply one of trying to stop the 1st accused and the deceased from fighting. He also denies being a party to any "joint enterprise" as alleged against him.

The issues

16.	The main issue in this case in relation to the 1st accused is whether at the time of the incident he had the necessary intent to cause the death of, or grievous bodily harm, to the deceased.
17.	To determine that issue, the intoxication by the accused is highly relevant, but is not the only relevant fact to take into account. Evidence of the accused's conduct immediately before, during and immediately after, the incident which led to the death of the deceased are also relevant considerations which ought to be taken into consideration.

18.	As for the 2nd accused, there are 2 issues that arise in connection with his case. The first is whether the 2nd accused aided and abetted the 1st accused in assaulting the deceased. 

19.	If the court finds that he aided and abetted the 1st accused then he will also be guilty of murder. If the court finds that he did not aid or abet the 1st accused then the second issue is whether or not he was involved in a "joint enterprise" with the 1st accused. If the court finds that he was not involved then he must be acquitted.

The law in regards to murder

20.	The offence of murder is created under section 200 of the Penal Code. That section says:

"200.	Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life".

21.	Hence, the elements of the offence of murder are:-

[a]	whether the accused caused the death of the deceased; and,

[b]	whether, at the time of causing the death, the accused had the necessary malice aforethought.

22.	Malice aforethought is defined in section 202 of the PC as follows:

"202. Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated –

[a]	an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or,

[b]	knowing that the act which caused the death will probably caused the death of, or grievous bodily harm to some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."

23.	The issue of malice aforethought has also been considered in a number of cases in this jurisdiction. In R v Viu ("Viu"), Sir John Muria, CJ, said:

"There are two states of mind either of which, if proved, would establish malice aforethought. The first of those states of mind is an intention to cause the death of, or grievous bodily harm to, a person. The second is the knowledge that the act which causes the death will probably cause the death or grievous harm to a person whether such person is the person actually killed or not."

24.	In R v Orinasikwa ("Orinasikwa"), Sir Muria, CJ, after citing the above remarks in Viu, continued as follows:

"The accused's state of mind must be established, of course, on the evidence before the court and must be done so by the Crown beyond reasonable doubt. Such evidence would include what the witnesses, including the accused, said happened at the time of the incident or immediately prior to or after the incident, so far as is relevant. The nature of the injuries are also a very important factor in determining the state of mind of the accused and the Court will also bear this in mind in this case."

25.	Hence, in the present case, to determine whether or not the elements were present, the following questions need to be asked:

[a]	Did the 1st accused cause the death of the deceased? and,

[b]	Did he mean to kill, or cause grievous bodily harm, to the deceased or some other person? or,

[c]	In doing the act which caused the death of the deceased, did he know that his action would probably cause the death of, or grievous bodily harm to, either the deceased or some other person?

The burden and standard of proof
26.	The Crown must prove each of these elements beyond reasonable doubt. Failure to prove any one or more of these elements will result in the accused being acquitted. There is no burden on the accused to prove his innocence.

Intoxication as a defence
27.	In the present case, the fact that the 1st accused had caused the death of the deceased by stabbing him with a knife is no longer in issue. The 1st accused had admitted having stabbed the deceased on the left ribs and that the deceased had died as a result of the wounds caused by that stabbing. What the 1st accused says, however, is that he was so drunk that he did not know what he was doing.

28.	Under section 13 of the Penal Code, intoxication can be a defence where "intent" is an element of the offence charged. That section reads:-

"13. – (1) Save as provided in this section, intoxication shall not be a defence to any criminal charge.

(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and:-

[a]	the state of intoxication was caused without his consent by the malicious or negligent act of another person; or,

[b]	the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.

(3) Where the defence under the preceding subsection is established, then in a case falling under paragraph [a] thereof the accused shall be discharged and in a case falling under paragraph [b] the provisions of this Code and of the Criminal Procedure Code relating to insanity shall apply.

(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

(5) For the purpose of this section "intoxication" shall be deemed to include a state produced by narcotics or drugs."

29.	Subsection (1) lays down the general rule that intoxication is no defence to a criminal charge. However, subsection (2) provides an exception to that general rule. It says that intoxication is a defence but only if the following conditions are satisfied. These are:-

[a]	if the accused did not know what he was doing or did not know that what he was doing was wrong; and,

[b]	either his intoxication was involuntary or, if voluntary, the intoxication has made him insane at the time of doing what he did.

Case authorities 

30.	In R v Iro ("Iro"), Sir John Muria, CJ, has laid down the test of intoxication as follows:-

"The question is whether the accused's mind was so affected by alcohol that he could not have formed the intention to do what he did or that his mind was so affected by alcohol that he did not know what he was doing at the time." 

31.	His Lordship appears to have formulated that test on the basis of the test propounded in Archbold where the learned author stated:-

"Where, however, the Crown has to prove any other mental element, such as intent or knowledge, …, the jury must consider any evidence of intoxication in determining whether the necessary mental element has been proved. In cases where drunkenness and its possible effect upon the defendant's mens rea are in issue, the proper direction to the jury is first to warn them that the mere fact that the defendant's mind was affected by drink so that he acted in the way which he would not have done had he been sober did not assist him at all, provided that the necessary intention was here. A drunken intent was nevertheless an intent. Secondly, subject to that, the jury should merely be told to have regard to all the evidence, including that relating to drink, to draw such inferences as they thought proper from the evidence, and on that basis to ask themselves whether they felt sure that at the material time the defendant had the requisite intent."

32.	In Viu, Sir John Muria, CJ, expressed the issue of mens rea as follows: 

"The accused's state of mind must be established, of course, on the evidence before the court …. Such evidence would include what the witnesses, including the accused, said happened at the time of the incident or immediately prior to or after the incident, so far as is relevant…".

33.	These statements clearly show that "intention" is a state of mind which can only be inferred from other facts. Intention, therefore, is a matter which is to be determined by considering all relevant evidence produced by the witnesses as to the appearance and conduct of the accused during, and immediately before and after, the incident as well as the nature of the injury caused and what the accused may have said at the time of the incident in so far as they are relevant and then drawing an inference from them. As stated in R v Cunningham ("Cunningham"), intention is a state of mind which can never be proved as a fact. It can only be inferred from other facts which are proved.

34.	So, in the present case, the Crown must prove that the 1st accused had the necessary intent to cause the death of, or grievous bodily harm to, the deceased and that, despite his intoxication, he did in fact had that intent at the time of the incident.

Witnesses
35.	Fourteen witnesses have been called by the Crown to give verbal testimonies at the trial. They are Minnie Arosi Leigh (PW1), Dr. Roy Maraka (PW2), Gabriel Dick Sina (PW3), Patson Lauga (PW4), Tracius Sandy (PW5), Silas Gwaro (PW6), Benjamin Harold Tafuselo (PW7), Eddie Ramoilangi (PW8), Barnabas Irokalani (PW9), Ben Suiamali (PW10), Roslyn Lusu (PW11), Oswald Mahira (PW12), Roy Sande (PW13) and Evalyn Fofoe Papae (PW14).

36.	In addition, a number of statements were tendered and received into evidence by consent. These are exhibits "P16" to "P30". The tender of exhibit "P29" (record of interview by the 1st accused) is consented to on the basis that the evidence there in is evidence against the 1st accused only and not against the 2nd accused. Likewise, exhibit "P30" (record of interview by the 2nd accused) is consented to on the basis that the evidence there in is evidence against the 2nd accused only and not against the 1st accused. 

37.	Both accuseds did not call any evidence. They only made statements from the dock. By law, they are entitled to do so.

Whether the 1st accused was drunk

38.	Of the witnesses called by the Crown, PW3, PW4, PW5, PW6, PW8, PW11 and PW14 agreed that the 1st accused was drunk at the time of the incident. PW1, PW2 and PW13 were not at the scene at the time of the incident and so were unable to say whether or not the 1st accused was drunk. As for PW7, PW9, PW10 and PW12, although they were at the scene of the incident at that time, they were unable to tell whether or not the 1st accused was drunk.

39.	At this juncture, I remind myself that, to amount to a defence under section 13 of the Penal Code, the drunkenness must be such that the accused, at the time of doing what he did, either did not know what he was doing or did not know that what he was doing was wrong. In other words, the accused's drunkenness must have reached the stage where his mental faculty could no longer discern what he was doing or had lost its power to judge between right and wrong.

40.	On the evidence before me, I am satisfied that the 1st accused was drunk when he stabbed the deceased on the 15th May 2009.

41.	However, the question is not that he was drunk. The question is whether he was so drunk that either did not know what he was doing or he did not know that what he was doing was wrong. This is the issue in this case as far as the 1st accused is concerned.

Whether the 1st accused was so drunk that he did not know what he was doing or he did not know that what he was doing was wrong?

42.	Counsel for the 1st accused submits that the testimonies of a number of the Crown witnesses have confirmed that the 1st accused was heavily intoxicated at that time. He refers specifically to the evidence of PW14 who said that the 1st accused smelt beer, walked in a zigzag manner, was unsteady on his feet, his shoulders were swaying from side to side as he walked and he was staggering. He also referred to the evidence of PW3 who said the 1st accused looked crazy, was full drunk, was waving his arms wildly, was shouting "ayah" very loudly, that he had red and swollen eyes and was moving unsteadily from side to side. Furthermore, PW5 said the 1st accused was drunk, that he was walking in an "x" pattern, that people waiting at the KG VI bus stop moved away when they saw him coming and that he walked in a zigzag manner. PW4 also said that the 1st accused was walking in a zigzag and crazy manner, talking a lot, waving his arms, shoulders moving from side to side, legs apart, eyes red, unsteady on his feet and full drunk. PW6 gave almost the same description about the appearance, movements and actions of the 1st accused in relation to his drunken state and PW11 simply said that the 1st accused looked drunk but could not say more. 

43.	In the light of these evidence, counsel for the 1st accused has invited the court to draw the inference that the 1st accused was so drunk that he could not have known, and did not know, what he was doing.

44.	I accept that the 1st accused was drunk. The manner in which the 1st accused was walking, the smell of beer on his body, the shouting, the unsteadiness, the zigzag walking, the swinging of the arm as well as his other drunken movements as described by the witnesses were all signs that the 1st accused was drunk. They are familiar actions, movements and appearances of people who are drunk. But whether they are sufficient to enable me draw the inference that the 1st accused was so drunk that he did not know what he was doing is another matter. Drunkenness is only part of the totality of the evidence that the court has to consider when deciding whether or not to draw that inference.

45.	Counsel for the 1st accused has also referred to a number of facts which, he submits, tended to support his submission that the 1st accused was so drunk that he did not know what he was doing. 

46.	First, he referred to the fact that the 1st accused had punched the truck very hard and yet not feel any pain as proof that alcohol had caused numbness in the thought process of the 1st accused's brain. Whether or not this was the case, it is my opinion that there is no sufficient evidence to support that conclusion.

47.	Second, he referred to the swearing by the 1st accused which he submits was done in the presence of a lot of women and children at the bus stop. Counsel submits that this shows that the 1st accused was not undertaking any considered course of action that he was acting and talking without thinking which is a sign that he was not properly aware of his surroundings and of the consequences of his actions.

48.	This submission assumes that drunken people in Solomon Islands do not normally swear in the presence of women and children unless they are so drunk that they do not know what they are doing. 

49.	With respect, I am unable to agree with this submission. It does not accurately reflect the true position in Solomon Islands. In Solomon Islands, people can still swear in the presence of women and children even when they are not drunk. Swearing normally happens when they are angry. It is the anger that makes them swear. So, the fact that the 1st accused was swearing in the presence of women and children at the time of the incident does not necessarily mean that he did not know what he was doing. To the contrary, the evidence clearly shows that he was swearing at the deceased and the reason he was swearing at the deceased was because it was the deceased who questioned his behavior in punching the truck.

50.	Third, counsel referred to the fact that the 1st accused swung the knife about 6 times at the deceased but missed. Counsel says that this shows a lack of co-ordination due the extreme level of intoxication of the 1st accused.

51.	The evidence, however, shows that the deceased was reversing and avoiding the 1st accused during the time the 1st accused was trying to stab the deceased. PW3 said that the 1st accused punched the deceased with the knife but luckily the deceased missed it. PW4 said while the 1st accused was hitting the deceased, the deceased was reversing and defending himself. PW5 said the 1st accused hit the deceased but the deceased missed it. He further said that the 1st accused then pulled out the knife and swung the knife at the deceased but the deceased again missed it and was reversing from the 1st accused. PW5 said when the 1st accused waived the knife at the deceased, the deceased was reversing. PW6 said that when the 1st accused struck the deceased with the knife, the deceased was trying to avoid it. From these facts, I am satisfied that the stabs by the 1st accused missed the deceased, not because the 1st accused lacked co-ordination, but because of the fact that the deceased was reversing and avoiding the stabs.

52.	Fourth, counsel also referred to the fact that the deceased and the 1st accused share the same language and therefore it would be unlikely that the 1st accused would have stabbed the deceased had he known that the deceased speaks the same language as him. He submits that no Solomon Islander would kill his "wantok" for no reason at all.

53.	I do not agree. There are many cases in Solomon Islands where persons have killed their own "wantoks", even their own blood brothers. In the present case, the reason why the 1st accused had assaulted the deceased was because he was angry at the deceased for questioning his action in punching the truck.

54.	Fifth, counsel also pointed to the fact that after the stabbing the 1st accused had to be told by his brother, the 2nd accused, that the knife had hit the deceased and that he should escape and that it was the 2nd accused who had to pull him away from the scene. This, submits counsel, shows the 1st accused's complete absence of awareness of what happened and, as such, he could not have formed the murderous intent before the stabbing and was not aware of his actions.

55.	Again, I do not agree with that conclusion. The fact that the 2nd accused had told the 1st accused that the knife had hit the deceased is not conclusive evidence that the 1st accused knew nothing about the knife hitting the deceased. Similarly, the fact that the 2nd accused had told the 1st accused to leave the scene is not conclusive evidence that the 1st accused knew nothing about what had happened. There are other possible explanations why the 2nd accused told the 1st accused to leave quickly. For instance, the 2nd accused might have been concerned about his brother's safety and did not want him to remain at the scene for fear of being attacked by the deceased's relatives or for fear of being arrested by the police. Or, it may be that the 2nd accused was not happy with what the 1st accused did and had simply wanted the 1st accused to leave the scene.

56.	Sixth, counsel referred to the fact that the 1st accused did not run away from the scene and that instead he was walking towards the direction of the old G. Province area. He submits that the 1st accused did not make any attempt to conceal the knife with which he had stabbed the deceased. These, counsel says, are actions of a person who was detached, by reason of intoxication, from the reality which surrounded him. 

57.	Again, I do not agree. There are various possible conclusions that are open to be drawn from the 1st accused's conduct and the one posed by counsel for the 1st accused is not the only one.

58.	Seventh, counsel referred to the amount of alcohol taken by the 1st accused. He submits that the accused had drunk 9 to 10 bottles of beer and that, according to the evidence of the 2nd accused, there is a possibility that he might have drunk whiskey and probably more than 9 or 10 bottles of beer. 

59.	I agree that he might have drunk 9 or 10 bottles of SB beer. However, whether he drank more than that is not clear. The fact that the 2nd accused had seen the 1st accused holding 2 Saratoga drinks is not conclusive evidence that he drank Saratoga. It could be that he might have bought them and was just holding them when he was seen by the 2nd accused.

60.	I have considered the submissions of counsel for the 1st accused as well as the evidence produced in court, as outlined by counsel, in relation to the actions of the 1st accused and his conduct before, during and after the incident. As pointed out in Cunningham, intention is a state of mind which can never be proved as a fact but which can only be inferred from other facts which are proved. 

61.	Hence, I am obliged to consider, not only the evidence supporting the 1st accused's position as outlined by his counsel, but to also consider other evidence which tend to show that the accused was not so drunk as to be incapable of knowing what he did or of knowing that what he did was wrong.

62.	The starting point must be the consumption of alcohol by the 1st accused. In his record of interview with the police (Exhibit "P29"), he said he had drunk about 9 or 10 SB cans of beer at the seaside of the old G. Province area. I accept that evidence. It was suggested that he might have drunk Saratoga as well as the 2nd accused had seen him holding 2 bottles of Saratoga. I accept that he might have drunk Saratoga.

63.	The 1st accused then stated in his record of interview that after drinking the beer, he strolled to the Market (Q.52, 53, 54). His intention was to go and get a bus back to Burns Creek where he lived (Q.55).

64.	At the Market, he met his cousin brother, Jerome Konai, who, he said was selling coconut opposite the restaurant to the entrance gate (Q.67, 68). He said he asked Jerome for money and Jerome gave him $10.00 (Q.69, 70). 

65.	He said that he then came to the KG bus stop and fighting was happening between some drunken men so he joined in (Q.71, 73, 74). He said he fought with a man from Fataleka (Q.76, 77, 78). He knew the man was from Fataleka because the man spoke in Fataleka language (Q.80). He said that he and the Fataleka man were arguing first but said that he did not know what they were arguing about (Q.81, 82).

66.	It is interesting to note from his record of interview that, initially, the 1st accused did not say anything about his encounter with PW14. He said that as soon as he was given $10.00 by Mr. Konai, he came straight to the KG bus stop and then got involved immediately in the fight (Q.70 to 78).

67.	He only admitted his encounter with PW14 when it was put to him that at the Market he went to a woman and took her knife (Q.85). At first he denied it but when it was put to him that he had asked the woman for $10.00 and that when she refused to give him $10.00 he put the knife on the woman's shoulder, he admitted asking the woman for $10.00 and admitted taking her knife. He even remembered the woman's name as "Evalyn" and remembered that the knife had a yellow handle, sharp on one side and had a white blade (Q.86, 87). He agreed that he did not obtain Evalyn's permission to take the knife (Q.88). From then on, he refused to answer further questions from the police.

68.	Exhibit "P29" shows that from the time the 1st accused drunk his alcoholic drinks at the seaside of the old G. Province area up to the time when he came and took the knife from PW14, he was not so drunk as to be incapable of knowing what he was doing. The answers he gave to some of the questions put to him during his interview with the police show that, although drunk, his mental faculties were still functioning properly and he knew what was happening as shown by the following facts: he knew that he came to the Market after having his drinks (Q.52,53,54); he knew that he came to his cousin brother, Jerome Konai, and asked him for $10.00 (Q.66,68,69,70); he recognised Mr. Konai (Q.66,68); he knew the exact position in the Market where Mr. Konai was selling his coconuts, which was opposite the Kaibar at the entrance of the gate (Q.67); he knew that Mr. Konai gave him $10.00(Q.70); he knew that he came and took the knife from PW14 (Q.86); he was able to recognise PW14 and remembered her name (Q.86); he knew that he had asked PW14 for money (Q.86); he knew that he took the knife from PW14 and without her permission (Q.88); he was able to recognise the knife and described it as a knife with yellow handle, sharp on one side and having a white blade (Q.87). He knew he came to a bus stop (Q.73). He knew he was involved in a fight at that bus stop and he knew he was fighting a Fataleka man (Q.76, 78, 79, 80). Despite these clear evidences, the 1st accused maintained that he did not know what he was doing when he stabbed the deceased.

69.	The evidence of PW14 confirmed what the 1st accused said in his record of interview in regards to the knife. According to PW14, the knife was in the draw of her market table. Then the 1st accused came and asked her for $10.00. She was surprised that the 1st accused was holding her knife when he asked her for the $10.00. She said she had no money and refused to give any to the 1st accused. She then asked the 1st accused to give her knife back to her but the 1st accused refused to give it back and instead put the knife in his trousers and went away to the main gate and towards the KG bus stop. Not long after that (about 5 minutes later), she heard that there was a fight on and that she was informed that the 1st accused was involved.

70.	This is consistent with the evidence of PW3 who said that he saw the 1st accused come out of the main gate of the market and then walked to the truck and punched the door and the front of a truck and then followed by the exchange of words between the 1st accused and the deceased as well as the swearing by the 1st accused and the fighting which subsequently resulted in the stabbing of the deceased by the 1st accused.

71.	The evidence of PW14 is interesting in regards to the state of drunkenness of the 1st accused. She said the 1st accused was drunk when he asked her for the $10.00 and when he took her knife. She also said the 1st accused smelt of beer and he walked in a zigzag manner, staggering and moving from side to side as he walked. These descriptions of the actions, appearance and movements of the 1st accused are similar to those given by the other witnesses as to the actions, appearance and movements of the 1st accused at the time of the assault on the deceased at the KG bus stop. 

72.	The inference that can be drawn from these evidences is that the state of intoxication of the 1st accused at the time he was arguing and assaulting the deceased was the same as his state of intoxication at the time he came to the Market and talked with Mr. Konai and PW14. When he went to the Market and to PW14, he was drunk but he knew what he was doing. According to PW14, it was about 5 minutes or so after leaving her that she heard that a fight was on and that the 1st accused was involved. Surely the 1st accused could not have become so drunk within a matter of just 5 or so minutes so as to be incapable of knowing what he was doing to the deceased.

73.	PW14 said that when the 1st accused walked away with her knife, he put the knife in his trousers at the right side. According to the evidence of PW3, PW4, PW5, PW6, PW7 and PW8, the 1st accused pulled the knife out from the left side of his trousers under his shirt when he stabbed the deceased. Although there is a discrepancy between the exact side of the trousers where the 1st accused put the knife when he left PW14 and the side from which he pulled out the knife when he stabbed the deceased, I do not consider this discrepancy as of any significance. I bear in mind that fact that this was an incident that happened 2 years ago and memory sometimes lapses in regards to minor points such as where he might have placed the knife when he left PW14.

74.	Despite this discrepancy, one thing is clear and that is, the 1st accused knew where he put the knife when he left PW14 and he still remembered where the knife was when he decided to stab the deceased. This does not support the view that the 1st accused did not know what he was doing.

75.	There are also other evidence which support the finding that the 1st accused knew what he was doing. First, the evidence show that the 2nd accused was standing between the 1st accused and the deceased when the 1st accused was trying to stab the deceased, however, the 1st accused did not stab the 2nd accused. A person who was so drunk that he did not know what he was doing would not have been able to differentiate between the deceased and the 2nd accused. I am satisfied the 1st accused was going for the deceased and was determined to stab the deceased. I am satisfied he recognised the deceased and he also recognised the 2nd accused and he knew who the 2nd accused was and he knew that the 2nd accused was his brother. I am satisfied that that was the reason why he did not stab the 2nd accused and was instead going for the deceased.

76.	Second, the evidence show that the 1st accused had swung the knife at the deceased about 6 times and missed. Despite those misses, he remained standing on his feet. He did not fall. He maintained his balance. That is inconsistent with a person so drunk that he did not know what he was doing.

77.	Third, at the time he made the fatal stab, he was standing behind the 2nd accused but managed to step around the 2nd accused and then stabbed the deceased. These movements were inconsistent with those of a person so drunk that he was incapable of knowing what he was doing.

78.	Finally, the stab wound on the left chest which caused the death of the deceased was described as having entered the chest cavity between the 5th and the 6th left ribs, punctured the lower lobe of the left lung then went through the pericardium, which is the structure that contains the heart in a cavity, and then through the left side of the heart wall and into the left ventricle, which is the space in the heart through which blood passes when pumped to the body. I am satisfied that such wound would only result from the application of considerable force and I am satisfied that the 1st accused knew he was applying considerable force when he stabbed the deceased.

79.	On the basis of these evidence, I am satisfied beyond reasonable doubt that when the 1st accused stabbed the deceased with the knife at the Market on 15th May 2009, he knew what he was doing and he knew that to stab a person in his ribs with a 30cm knife, and applying the kind of force which he had applied at that time, death or grievous bodily harm would have resulted. In this case, death was the result.

80.	Accordingly, I find the 1st accused guilty as charged. Under section 200 of the Penal Code, a person convicted of murder must be sentenced to life imprisonment. Accordingly, the 1st accused, Thomas Erega Manioru, is hereby sentenced to life imprisonment. 

The case of the 2nd accused
81.	I now turn to the case against the 2nd accused.

82.	The allegation against this accused is that he had aided and abetted the 1st accused in causing the death of the deceased. Alternatively, the Crown alleges that he was involved in a "joint enterprise" with the 1st accused in assaulting the deceased.

83.	The accused denies these charges. He says that his involvement in the incident was simply one of trying to stop the 1st accused and the deceased from fighting.

The law on aiding and abetting

84.	Section 21 of the Penal Code provides as follows:

"When an offence is committed, each of the following persons is deemed to have taken part in committing the offence, and may be charged with actually committing it, that is to say –

[a]	every person who actually does the act or makes the omission which constitutes the offence;

[b]	every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

[c]	every person who aids or abets another person in committing the offence;

[d]	any person who counsels or procures any other person to commit the offence.

In the last-mentioned case he may be charged either with committing the offence or with counseling or procuring its commission.

A conviction of counseling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with doing the act or making the omission." 

85.	A person who aids or abets the commission of an offence as provided for under section 21 of the Penal Code, or who is a party to a joint enterprise as provided for under section 22 of the Penal Code, is described as a principal in the second degree in the commission of the offence and is just as guilty of having committed the offence as the person who actually did the criminal act.

86.	The issue of aiding and abetting has been considered in a number of cases both overseas and locally. In Johnson v Youden ("Youden"), Lord Goddard, CJ, said:

"Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence. If a person knows all the facts and is assisting another person to do certain things, and it turns out that the doing of those things constitutes an offence, the person who is assisting is guilty of aiding and abetting that offence, because to allow him to say "I knew of all those facts but I did not know that an offence was committed", would be allowing him to set up ignorance of the law as a defence."

87.	In R v Coney ("Coney"), Hawkins, J, said:

"In my opinion, to constitute an aider or abettor, some active steps must be taken, by words or actions, with intent to instigate the principal or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional. A man may unwittingly encourage another by his presence or by misinterpreted words or by gestures or by his silence or non-interference, or he may encourage intentionally by expressions or gestures or actions intended to signify approval. In the latter case, he aids and abets, in the former, he does not". 

88.	In R v Maetia & Misi ("Maetia"), Sir John Muria, CJ, after referring to the passage in Youden said:

"The authorities clearly show that for a person to have aided and abetted the commission of an offence it must be established that he is present (actual or constructive); that he knows the facts necessary to constitute the offence, and that he is actively encouraging or in some way assisting the other person in the commission of the offence. Knowledge of the actual offence committed is not essential." 

89.	In Keke v R, the Court of Appeal said:

"… to be a principal in the second degree, there must be evidence of conduct pointing to assisting or abetting the principal of the first degree. … where presence is entirely innocent or accidental there can be no evidence of aiding or abetting. Where presence is on the face of it not accidental it is no more than evidence for the jury or the court".

90.	The principle enunciated in the above cases is that in order for a person to be guilty of aiding and abetting, it must be established by evidence that an offence has been committed and that the accused had conducted himself in a manner which had encouraged or assisted the principal in committing the offence.

The law on "joint enterprise"
91.	As regards the issue of "joint enterprise", section 22 of the Penal Code provides that:-

"Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

92.	This provision has been explained by His Lordship, Lungole-Awich J, in R v Ben Tungale & Others as follows:

"Where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, and that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (…) that, if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorized act. Finally, (…) it is for the jury in every case to decide whether what was done was part of the joint enterprise, or went beyond it and was in fact an act unauthorized by that joint enterprise". 

93.	In R v Peter Fitali & Others CRC, it was held that the existence of a joint enterprise must first be established. It must be proved that the accuseds were all parties to the joint enterprise and that the acts of the accused were done in furtherance of that joint or common enterprise.

94.	In R v Victor Tadakusu, it was said that to prove joint enterprise under section 22 of the Penal Code, the following elements must be established:-

[a]	a common intent,

[b]	to prosecute and unlawful purpose,

[c]	an offence is committed,

[d]	it is a probable consequence arising from prosecution 

of such purpose.

95.	In the present case, it is not disputed that the 2nd accused was involved in the incident between the 1st accused and the deceased. The issue is whether his involvement was by way of assisting the 1st accused assault the deceased or whether his involvement was by way of trying to stop the 1st accused and the deceased from fighting.

96.	A number of witnesses have given evidence in relation to the 2nd accused's participation in the incident. PW3 said that as the 1st accused was pushing the deceased towards the Market fence he saw the 2nd accused came from the Market and told the 1st accused to kill the deceased. Later, PW3 said that after the 1st accused swore at the deceased the 2nd accused came running and kicked the deceased's left thigh with his right leg. The deceased then tried to defend himself by pulling his leg back and out of the way. The 2nd accused was standing on the right side of the 1st accused and both were facing the deceased and both pushing him towards the Market fence. After the 2nd accused kicked the deceased, the 1st accused punched the deceased but missed. At that time, the 2nd accused grabbed the deceased's shirt and held the deceased at the shoulder area. It was then the 1st accused pulled out the knife from his left trousers and then swung the knife towards the left ribs of the deceased. At that time, the 2nd accused was still holding on to the deceased's shoulders. It was then that PW3 kicked the knife out of the 1st accused's hand and the knife fell close to the 2nd accused. The 1st and 2nd accuseds then ran away towards the Point Cruz direction.

97.	PW4 said that he saw the 2nd accused climbed over the Market fence and came to where the 1st accused and the deceased were at the time when the 1st accused was swearing at the deceased and the deceased replying back to the 1st accused. He said the 2nd accused came and stood between the 1st accused and the deceased but closer to the deceased. The 2nd accused then asked the deceased what they were arguing about. The deceased then replied and said it was the 1st accused who hit the truck. At that time, the 1st accused wanted to fight the deceased and punched the deceased. He said it was the 1st accused who was hitting the deceased and that at the same time he saw the 2nd accused pushing the deceased and telling him to go or else the 1st accused would punch his mouth. In cross examination he agreed that the 2nd accused was trying to break up the fight. He said as the 2nd accused was pushing the deceased and telling him to go, the 1st accused pulled out the knife and stabbed the deceased. He said from that moment he did not see the 2nd accused again.

98.	PW5 said that he was sitting in the cabin at the front of the truck when the 1st accused came and punched the front of the truck. He said the deceased then asked the 1st accused why he hit the truck whereupon the 1st accused replied by asking the deceased whether he was angry and at the same time swearing at the deceased. He said the 1st accused then punched the deceased but the deceased evaded the punch. He said the 1st accused then pulled out a knife and stabbed the deceased but again the stab missed the deceased. He said that as the deceased was reversing from the 1st accused, he saw the 2nd accused come in from the western side and told the deceased in Fataleka language to go from the 1st accused or else the 1st accused would punch his mouth. He said the 2nd accused was standing between the deceased and the 1st accused and was telling the deceased to go from the 1st accused. In cross examination he said that the 2nd accused sounded as if he was chasing someone away. He also said that he tried to talk to the 2nd accused to hold the 1st accused so that the deceased could escape from the 1st accused but the 2nd accused appeared not to have heard him because he was talking loudly to the deceased and pushing him away from the 1st accused. He said that it was at that time that the 1st accused stepped from behind the 2nd accused and stabbed the deceased on the left ribs. He said that a boy from Fataleka then kicked the knife from the 1st accused's hand and the knife fell from the hands of the 1st accused. He said it was the 2nd accused who picked up the knife and put it under his shirt. He said the 2nd accused then pulled the 1st accused and told him to run away as the knife had hit the deceased. He said the 2nd accused was holding on to the 1st accused's hands and leading him away quickly towards the western end of the Market.

99.	PW6 said he first saw the 2nd accused when the 2nd accused was holding on to the deceased's shoulders as the deceased was reversing and the 1st accused arguing with the deceased. He said he did not see where the 2nd accused came from. He only saw the 2nd accused stretching out his hand towards the deceased in a kind of "stop" sign while the 1st accused and the deceased were arguing. The next thing he saw was the 1st and 2nd accused walking past him and hearing the 2nd accused telling the 1st accused in Fataleka language to run away because the knife had hit the deceased.

100.	PW8 said he saw the 2nd accused climbing the fence then came to the deceased and kicked the deceased on his right thigh. However, when asked to describe the kicking, he stated that the 2nd accused kicked the deceased with his right foot. Then, when asked to demonstrate the kicking, he kicked with the left leg and then the right leg. Then when asked to repeat the demonstration, he kicked with the right foot only. He then said that the 1st accused tried to stab the deceased but the deceased was defending himself and reversing. He said that while the deceased was reversing, the 1st accused was following him and that the 2nd accused was following the 1st accused. He also said that after the 1st accused stabbed the deceased, he put the knife back in the place where he pulled it from then he went towards the old G. Province area. He said he did not know where the 2nd accused went.

101.	The evidence of PW9 was not very clear. He said he saw two men chasing another man and that one of the men doing the chasing took out a knife and stabbed the man being chased. He said that the other man who was doing the chasing was behind the one doing the stabbing and was tapping the shoulders of the one doing the stabbing.

102.	PW10 could only make a general description of two men attacking another man and one disturbing the deceased while the other one did the stabbing.

103.	The evidence by the rest of the witnesses who testified did not provide anything useful towards deciding the issue relating to the charge against the 2nd accused.

104.	However, there are a number of important inconsistencies that I found in regards to the evidence by these witnesses. PW3 and PW8 said that the 2nd accused came and kicked the deceased. PW10 said that two men were attacking another man. I take this to mean that the two men concerned were the 1st and 2nd accused. The evidence of PW3, PW8 and PW10, if accepted, would show that the 2nd accused was assisting the 1st accused in assaulting the deceased.

105.	However, the evidence of PW4, PW5 and PW6 told a very different story altogether from that of PW3, PW8 and PW10. The evidence of PW4, PW5 and PW6 supported the evidence by the 2nd accused as provided in his record of interview (exhibit "P30").

106.	In his record of interview, the 2nd accused said the Market had closed so he and his wife and son were on their way out from the Market when he heard the 1st accused arguing with the deceased (Q.71, 72). They were arguing in Fataleka language. He then went over to them and tried to stop them from fighting, but the 1st accused insisted on fighting and tried to punch the deceased but the punch missed the deceased (Q.78,80,81). By then the 1st accused and the deceased had moved to the fence area close to where gas was being sold and there the 2nd accused went and stood between then and told the deceased to go from the 1st accused (Q.81,82). However, the 1st accused pushed the 2nd accused aside and then stabbed the deceased (Q.93). The evidence by PW4, PW5 and PW6 are consistent with that of the 2nd accused.

107.	I must say I prefer the evidence of PW4, PW5 and PW6 and the 2nd accused to that of PW3, PW8 and PW10. The evidence by PW10 is not clear and it would be unsafe to rely on it. The evidence by PW8 was full of contradictions. His physical demonstrations of the alleged assault by the 2nd accused on the deceased was inconsistent with his verbal descriptions of the assault which he said was carried out by the 2nd accused on the deceased. He is a very young man and could not stand the pressure of giving testimony in a court room. This is demonstrated by the fact that twice he became stressful in the witness box and the court had to stand him down on each occasion to enable him regain himself before proceeding on with his testimony. Likewise, I cannot rely on the testimony of PW3. He appeared to me to be exaggerating his story in his testimony about the 2nd accused kicking the deceased. I do not believe him in regards to the kicking.

108.	In addition to the above, there is no evidence of any pre-determined plan by the 1st and the 2nd accused to carry out any assault on the deceased. The evidence showed that the first time the 2nd accused became involved in the incident was at the time when the 1st accused was arguing with and assaulting the deceased.

109.	As such, I am not satisfied to the required standard that the 2nd accused has aided or abetted the 1st accused in the assault on the deceased or was involved in any joint enterprise with the 1st accused in the assault on the deceased. Accordingly I find the 2nd accused, Stephen Fiurobo Manioru, not guilty of the charge against him and he is acquitted of the charge.

THE COURT

Justice James Apaniai
Puisne Judge